Delhi High Court

Sanjay Kumar Thakur And Ors vs North Delhi Municipal Corporation Of ... on 1 December, 2016

Author:
Sunita Gupta

Bench:
Sanjiv Khanna
,
Sunita Gupta

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5828/2016
Reserved on: 23.09.2016
Date of Decision: 01.12.2016

SANJAY KUMAR THAKUR AND ORS ..... Petitioners
Through: Mr. Apurb Lal & Ms. Meenu Pandey,
Advocates.
versus

NORTH DELHI MUNICIPAL CORPORATION OF DELHI
AND ORS ..... Respondents
Through: Ms. Biji Rajesh, Ms. Aditi Gupta &
Mr. Gaurang Kanth, Advocate for NDMC.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MS. JUSTICE SUNITA GUPTA

SUNITA GUPTA, J.

The present writ petition impugns the order dated 10.5.2016 passed by
the Principal Bench of the Central Administrative Tribunal, whereby O.A.
No.1749/2015 filed by the petitioners has been dismissed.

2. The petitioners were appointed as Laboratory Assistants in the
erstwhile Municipal Corporation of Delhi between July, 2004 and October,
2004. After trifurcation of the Municipal Corporation of Delhi, the
petitioners were assigned to the North Delhi Municipal Corporation
(Corporation for short).

3. The petitioners proclaim that they should be covered under the
Central Civil Services (Pension) Rules, 1972 (herein after referred to as the

W.P.(C) 5828/2016 Page 1 of 18

Old Pension Scheme) and not under the New Contributory Pension Scheme,
effective from 1.1.2004 (hereinafter referred to as the New Pension
Scheme). The claim is predicated on the argument that they were appointed
to posts in which vacancies had arisen in the year 2002-2003. The date of
appointment being after 1.1.2004 would be inconsequential to decide the
applicability of the old or new pension schemes to the petitioners. They
attribute delay in appointment/joining to the respondents.

4. For the sake of clarity, we would like to state the relevant facts. On
27.12.2002, the respondent No.1 Corporation had requisitioned the Delhi
Subordinate Services Selection Board („DSSSB‟ for short), for filling up of
various posts including the vacant posts of Laboratory Assistants. The
advertisement inviting applications was published on 5.6.2003 and the
written examination was conducted on 19.10.2003. The DSSSB had
declared the results, vide Office Order No.109 dated 29.10.2003, and the
dossiers of the selected candidates were sent to respondent No.1 Corporation
by the DSSSB on 6.11.2003. The offer of appointment was made to the
petitioners on 19.03.2004 and the petitioners were appointed to the post of
Laboratory Assistants between July, 2004 and October, 2004.

5. The petitioners submit that the New Pension Scheme which was
brought into effect from 1.1.2004 would not be applicable to the petitioners
as they were recruited prior to 31.12.2003. There was no rational and basis
for fixing 1.1.2004 as the cut off date for applicability of the New Pension
Scheme and the date should be struck down as being violative and infringing

Article 14
of the Constitution of India.

6. Learned counsel for the petitioners relies on the decision of the
Supreme Court in
Marripati Nagaraja & Others vs. Government of Andhra

W.P.(C) 5828/2016 Page 2 of 18

Pradesh & Ors.
; (2007) 11 SCC 522 and the decision dated 28.06.2013 of
the Central Administrative Tribunal, Ernakulam Bench in O.A. No.724/2012
titled
P. Rajesh Kumar & Ors. vs. State of Kerala
and the order dated
11.12.2013 in O.A. No.1869/2011 titled
Rabinder Kumar Pattanayak vs.
Union of India & Ors.
decided by the Central Administrative Tribunal,
Principal Bench, New Delhi.

7. We have considered contentions raised by the petitioners but do not
find any merit in them.

8. The Delhi Municipal Corporation Service Regulations, 1959 apply to
all municipal officers and employees, except those appointed under a
contract, rendering part time service or earning daily wages. Regulation 4
(1) reads as under:-

"4. Conditions of service of municipal officers and other
municipal employees-

(1) Unless otherwise provided in the Act or these
Regulations, the Rules for the time being in force and
applicable to Government servants in the service of
the Central Government shall, as far as may be,
regulate the conditions of service of municipal
officers and other municipal employees except in
respect of matters relating to provident funds, subject
to the modifications that any reference in the Rules to
a Government servant, the Consolidated Fund of
India, the Civil Surgeon and the Medical Committee
shall be construed as a reference respectively to a
municipal officer or other municipal employees, the
Municipal Fund, the Municipal Health Officer and
Medical Board constituted by the Commissioner."

As per the said Regulation, unless it is specifically provided in the

W.P.(C) 5828/2016 Page 3 of 18

Municipal Act
or in the present Regulations, the Rules in force and
applicable to the Government servants in service of the Central Government
would regulate the conditions of service of municipal officers and
employees with the exception of matters relating to provident fund.

9. Clause (1) of
Regulation 3
of the Municipal Corporation Services
(Death-cum-Retirement and Benefits) Regulations, 1971 (1971 Regulations,
for short) reads as under:-

"3. Unless otherwise provided in the Act or these
regulations, these regulations shall apply to all officers
and other Municipal Employees of the M.C.D. whose
pay is chargeable to the "General Account" or the
"Water Supply & Sewage Disposal Account" of the
Municipal Fund.

Provided that nothing in these regulations shall apply
to such Municipal Officers and other Municipal
employees as are appointed under any contract or
temporary deputation or render part time service or are
in receipt of daily wages.

(1) In future Municipal Officer and other Municipal
employees will be eligible for grant, in place of existing
benefits of contributory provident fund and gratuity of
person and death-cum-retirement gratuity with all
related benefits, to the extent and subject to the
condition restrictions prescribed in the Liberalized
Pension Rules of the Central Government of 1950 and
Family Pension Scheme, 1964, as amended from time to
time, and these Rules and the relevant chapter of the
civil service Regulations, the Civil Pension
Commutation Rules and all orders, rulings and
procedural instructions issued thereunder by the Central
Government and the Comptroller and Auditor General
of India, shall apply mutatis mutandis to the Municipal
Officers and employees.

Provided that those of the Municipal Officers and
employees who on the introduction of these regulations

W.P.(C) 5828/2016 Page 4 of 18

are, already subscribing to the contributory provident
fund, may, at their option continue to subscribe to the
fund under existing regulations or surrender the
Municipal contribution paid into their provident fund
accounts and interest thereof, to the Corporation and
instead count their service towards pension, such option
shall be exercised in writing within six months of the
promulgation of these regulations and the option once
exercised shall be treated as final and irrevocable."

A reading of the said Regulation would indicate that benefit of the
Rules and relevant chapter of the Central Civil Services Regulations, Civil
Pension Commutation Rules, all orders and rulings, and procedural
instructions issued by the Central Government and the Comptroller and
Auditor General of India, were to apply mutatis mutandis to municipal
officers and employees and were subject to the conditions and restrictions
prescribed. The proviso deals with municipal employees and officers, who
were already subscribing to contributory provident fund.

10. The Central Civil Services (Pension) Rules, 1972 had come into force
on 1st June, 1972. By amendment dated 30th May, 2003, published in the
Gazette of India on the same date, the Central Civil Services (Pension)
Rules, 1972 were made applicable only to the Government servants
appointed on or before 31st December, 2003. As a sequitur, the aforesaid
pension regulations would not apply to any Government servant appointed
on the 1st day of January 2004, or thereafter. Simultaneously, the
Government of India vide notification No.5/7/2003-ECB & PR dated 22nd
December, 2003 had introduced a new pension scheme for the Government
employees who had entered into service on or after 1st January, 2004.

11. The Commissioner‟s letter No.F.33/CA-FA/665/C&C dated

W.P.(C) 5828/2016 Page 5 of 18

29.7.2005 refers to the New Pension Scheme applicable to all employees of
autonomous bodies under various Central Ministries/Departments recruited
on or after 1.1.2004, as per the O.M. No.1(13)/EV/2001 dated 13.11.2003 of
Ministry of Finance, Government of India. For the sake of clarity, we would
like to reproduce the relevant portion of the said letter which reads as
under:-

"By virtue of Delhi Municipal Corporation Service
(Death-cum-Retirement & Benefits) Regulations, 1971
notified vide Delhi Administrative Gazette Notification
No.F. 2(130) 67-LSG dated 29.10.1971 Part-IV (Extra-
ordinary), Liberalized Pension Rules of the Central
Government of 1950 and Family Pension Scheme 1964
as amended from time to time, along with relevant
chapter of Civil Service Regulation with Civil Pension
Commutation Rules and all orders ruling procedural
instruction issued hereunder by the Central Government
and Comptroller and Auditor General are applicable
mutatis mutandis to Municipal Officer and employees.

Now the Government of India, Ministry of Finance vide
O.M. No.5/7/2003/ECB&PR dated 2.12.2003 has
introduced new defined Contribution Pension Scheme for
new entrants in Central Government Service except
Armed Forces replacing the existing scheme of Defined
Benefit Pension Scheme. Subsequently Government of
India, Ministry of Finance vide No.1(7)(2)/2003/TA/11
dated 7.1.2004 read with O.M. No. 1(7)(2)/2003/TA/67-
74 dated 4.12.2004 have defined the important provisions
(placed as Annexure-I). Salient features of the scheme
are :-

(i) The new pension scheme will be applicable to all
employees of Autonomous Bodies under various
Central Ministries/Departments recruited on or
after 1.1.2004 as per Govt. of India, Ministry of

W.P.(C) 5828/2016 Page 6 of 18

Finance O.M. No. 1(13)/EV/2001 dated
13.11.2003.

(ii) Contribution to be recovered from every
employee/officer @ 10% of his Pay + Dearness
Pay + Dearness Allowance every month. Equal
amount of Corporation contribution is to be paid
by the Corporation.

(iii) The amount so collected will be invested to created
Pension Fund.

(iv) The modalities of managing the fund are yet to be
finalized on the lines of Govt. of India as well
Govt. of NCT of Delhi.

In view of the provision of Delhi Municipal Corporation
Services (Death-cum-Retirement & Benefits) Regulations
1971, new Pension Scheme will also be applicable to all
officers and employees of the Municipal Corporation of
Delhi recruited on or after 1.1.2004.

It is, therefore, proposed that new defined Contribution
Pension Scheme introduced by Govt. of India with all
procedures, instructions, orders and future amendments
issued there undue [sic. under] by the Central Govt. of
[sic. or] Comptroller & Auditor General from time to
time be adopted mutatis and mutandis for Municipal
officers and employees recruited on or after 1.1.2004.

The matter may please be placed before the Corporation
through the Standing Committee for approval."

(emphasis supplied)

The letter of the Commissioner dated 29.07.2005 was in conformity
with the Delhi Municipal Corporation Service Regulations, 1959 as well as

W.P.(C) 5828/2016 Page 7 of 18

the Municipal Corporation Services (Death-cum-Retirement Benefits)
Regulations, 1971. A reading of the aforesaid letter elucidates that the
respondent No.1-Corporation had followed the mandate issued by the
Central Government, i.e. the New Pension Scheme was made applicable to
all employees joining on or after 1.1.2004. The Central Government as a
matter of policy and for good reason has taken the date of joining as the
determining factor for deciding whether a Government employee would be
covered under the Old Pension Scheme or the New Pension Scheme, for it
would curtail litigation and make the New Pension Scheme applicable
prospectively and not retrospectively. The letter uses the expression
"recruited on or after 1.1.2004" The said expression has to be read as per the
Central Government‟s interpretation and instructions.

12. The penultimate paragraph of the Commissioner‟s letter dated
29.7.2005 is lucid and categorical. The letter specifically records that the
New Pension Scheme introduced by the Government of India with all
procedures, instructions, orders and future amendments issued there under
by the Central Government from time to time, would be adopted mutatis
mutandis by the Corporation and the employees recruited on or after
1.1.2004. It was specifically clarified that the New Pension Scheme would
be applicable as per the Government of India, Ministry of Finance O.M.
No.1(13)/EV/2001 dated 13.11.2003. The cut-off date of 31st December,
2003 for applicability of the old pension scheme was dependent upon the
date of joining and not on the date when the recruitment process was
initiated.

13. Accordingly, the matter was placed before the Standing Committee,
who vide their Resolution No.210 dated 10th August, 2005 had resolved to

W.P.(C) 5828/2016 Page 8 of 18

apply the new contributory pension scheme to municipal employees
recruited in service on or after 1st January, 2004.

14. The Commissioner of Municipal Corporation vide letter No.F.33/CA-
cum-FA/1320/C&C dated 10th December, 2007 proposed the procedure for
implementation of the New Pension Scheme in the MCD for employees who
had been recruited on or after 1.1.2004. In the said letter, the expression
used is "joined service on or after 1.1.2004." The contention of the petitioner
that the old pension scheme would be applicable to all employees dependent
upon the date when the recruitment process was initiated is clearly contrary
to the letters of the Commissioner mentioned above.

15. It is pertinent to note that the letter dated 29.7.2005 itself is not under
challenge or questioned on the ground of ultra vires either the provisions of
the Act or the Regulations. The prayer made in the OA was restricted to
setting aside of the order dated 23rd April, 2015 by which the Administrative
Officer (Health) of the North Delhi Municipal Corporation had informed the
petitioners that they would be covered by the new pension scheme as they
had joined municipal service on or after 1st January, 2004 and were not
eligible for benefits under the old pension scheme.

16. The second prayer in the OA was to direct the respondents to give
pension to the petitioners under the old pension scheme as was done in the
case of other employees. The OA referred to office order dated 1 st June,
2010 and 10th August, 2011 by which benefit of old pension scheme was
granted to Dr. Alka Chandra, Specialist (Grade-II), Anaesthesia and Dr.
Rachna Rustgi Gupta, GDMO-II. These letters accept their representations
to be governed by the old pension scheme. In these cases, benefit of old
pension scheme was allowed after noticing that the candidates from the

W.P.(C) 5828/2016 Page 9 of 18

same batch including those junior had joined before 31 st December, 2003
and had been admitted to the old pension scheme. These cases, therefore,
would fall in a separate category, for some of the candidates of the same
batch, including those who were junior, were appointed earlier in point of
time and were covered by the old pension scheme and, therefore, directions
were given to cover the other candidates who had joined after 1 st January,
2004 under the old pension scheme. We are not determining and
commenting upon the merits of the said orders, for that is not the subject
matter before us. In the present case, all appointments as Laboratory
Assistants were made between July, 2004 and October, 2004. It is not a case
wherein some candidates or juniors were appointed as Laboratory Assistant
on or before 31st December, 2003 and were accordingly entitled to benefit
under the old pension scheme.

17. Reliance placed by the counsel for the petitioners on the decision of
the Principal Bench of the Central Administrative Tribunal in
OA
No.1869/2011, Rabinder Kumar Pattanayak Vs. Union of India & Ors.
,
dated 11th December, 2013 is misconceived and is distinguishable on facts.
In the said case, selection to the post of Assistant Legislative Council
advertised by the Union Public Service Commission vide advertisement
No.14/2002 became subject matter of challenge before the Tribunal and then
before the High Court in a writ petition. This had resulted in delay in issue
of appointment letters to some of the candidates, who were ultimately
declared successful and were offered appointments. Applying the maxim
and the dictum that the Court shall not prejudice anyone, relief was granted
by extending benefit of the old pension rules noticing that provisional
appointment had been granted from the date of appointment of junior.

W.P.(C) 5828/2016 Page 10 of 18

Direction was given that the candidate should be treated at par with his batch
mates for all consequential purposes except back wages. In the present case,
we do not have anyone from the same recruitment process or a junior joining
the post of Laboratory Assistant prior to 1st January, 2004. No one has been
given benefit of the old pension scheme.

18. We are not inclined to accept the reasoning of the Central
Administrative Tribunal, Ernakulam Bench in the decision dated 28.06.2013
in OA No. 724/2012,
P. Rajesh Kumar and Ors. Vs. The Union of India &
Ors.
, which records that benefit of the old pension scheme would be
available to the applicants therein for the reason that the vacancies had
arisen and related to the period prior to 1st January, 2004. The ratio and
reasoning is unacceptable in view of the prescribed cut-off date of 1.1.2004,
with reference to the date of joining and not the date of vacancies. The
aforesaid criterion, i.e. the date of joining, is not arbitrary or whimsical but
is with salutary and good reason.

Courts cannot substitute the said criterion
with another criterion as has been done by the Tribunal in the case of
P.
Rajesh Kumar
(supra), wherein the date of vacancy, it has been observed,
would be the fair and just criterion. This is impermissible and cannot be
accepted. The courts or judicial forums cannot legislate and substitute dates.
It is well-settled that the courts do not interfere with cut-off date as these are
matters of discretion and within the domain of the Executive or the
Legislature. The power to specify a date from which terminal or pensionary
benefits, as the case may be, shall take effect is concomitant of the power of
the State or Corporation to change the conditions of service unilaterally. So
long as the date specified is reasonable and not wayward with reference to
the requirement of fixing a point of time etc., no interference by the Court is

W.P.(C) 5828/2016 Page 11 of 18

called for.

(See
State of West Bengal & Ors. Vs. Ratan Behari Dey & Ors.

(1993) 4 SCC 62). When classification is permissible, choice of date being a
basis of classification, the date so fixed cannot always be dubbed as arbitrary
even if no particular reason is forthcoming for the choice unless it is shown
to be capricious or whimsical in the given circumstances. When a line or
point is to be fixed and there is no mathematical formula or logical way to
fix the same precisely, the decision of the Legislature or its delegate must be
accepted unless it can be said that the date or point so fixed is widely of the
reasonable mark.

(See
Union of India Vs. Parameswaran Matchworks

(
1975) 1 SCC 305 and A. Manjula Bhashini Vs. A.P. Women
's Coop
Finance Corpn. Ltd. (2009) 8 SCC 431). Whenever a law is enacted or an
amendment is made, the same has to be with effect from a particular date.
When it is otherwise permissible and legitimate to fix a date, the date so
fixed is open to scrutiny on the limited grounds of whimsicality and
capriciousness. If the choice made is burdensome to those to whom the
wrong done is sought to be rectified, it would be open to the Court to
examine the choice of date and find out whether it has resulted in any
discrimination.
(See B. Prabhakar Rao Vs. State of A.P, (1985) Supp SCC

432). Further, it is a well-settled and accepted principle of law that the name
of a candidate appearing on a select list would not give him an indefeasible
right to appointment and it would be open to the Government to not fill up
the vacancies. The Government cannot be compelled to fill up vacancies
where the decision not to do so is sound and rational, especially in the case
of direct recruits. (See
Neelima Shangla Vs. State of Haryana
(
1986) 4
SCC 268), Manoj Manu vs. UOI
(2013) 12 SCC 171, Kulwinder Pal Singh
Vs. State of Punjab (2016) 6 SCC 532). Thus, we would hold that there can

W.P.(C) 5828/2016 Page 12 of 18

be a gap between the date of vacancy, selection and appointment. On some
occasions, appointments may not be made at all or may be made after a long
delay.

19. Reliance placed on the judgment of the Supreme Court in
Marripati
Nagaraja and Ors. Vs. Government of Andhra Pradesh and Ors.
, (2007)
11 SCC 522 is misplaced. The said case related to recruitment to 34 posts of
Assistant Director of Agriculture in the Andhra Pradesh Agricultural Service
pursuant to the notification issued on 1.10.1992. Subsequently, there was an
amendment in the recruitment rules and Rule 22-A providing for reservation
for women was substituted. On interpreting the said Rule, the Supreme
Court observed that the women candidates were entitled to preference and
the percentage of reservation was increased from 30 to 33.33 per cent. The
Supreme Court held that though the notification amending the rule had been
given retrospective effect, no existing right of any person was taken away by
issue of the said notification. Referring to
Article 309
of the Constitution, it
was observed that the Government is entitled to make rules with
retrospective effect and retroactive operation. However, in the absence of
any rule being given a retrospective effect by an express provision or
stipulation, the rules prevailing on the date of notification were to be
applied. Going by the dictum, in the present case, the new pension scheme
has been made applicable to all those who had joined on or after 1 st January,
2004. Significantly, it was held that whether or not a rule was to be given
retrospective effect is within the domain of the State and unless the rule was
set aside, it would not be unconstitutional.

20. The third prayer made by the petitioner in the OA was that
rules/amendments/instructions were not in consonance with the
Article 14
of

W.P.(C) 5828/2016 Page 13 of 18

the Constitution. The challenge, it appears, is to the entire new pension
scheme, but the said challenge has been made without any basis or
foundation. Even before us, no such attempt was made to challenge the very
basis of the new pension scheme. For the reasons stated in paragraph 18
above, the challenge to the date of joining as the determining criteria, and
1.1.2004 as the cut-off date must be rejected.

21. The impugned order of the Tribunal follows the Division Bench
judgment of this court in
Shailender Kumar and Ors. vs. Delhi High
Court
(Through Registrar General) and Anr.; (2012) 189 DLT 524. The said case
related to appointment of petitioners who were unable to join the post of
Lower Division Clerk by 31.12.2003, though they were offered appointment
by letters dated 15.9.2003, 15.11.2003 and 12.12.2003, and the said offer of
appointment was accepted. An identical plea was raised. Pertinently, the
contention in the said case was on a better footing as letters of offer were
issued pre 31.12.2003 but actual date of joining was post 31.12.2003.
Rejecting the plea of the petitioners therein, it was held as under :-

"2. The main contention of the petitioners is that the
offer of appointment having been made to them prior to
01.01.2004 and their inability to join the post by
31.12.2003 not being attributable to any lapse on their
part, the benefit of CCS(Pension) Rules, cannot be
denied to them, particularly, when this was extended to
those who were selected simultaneously with them but
were able to join on or before 31.12.2003, on account of
their medical examination and police verification having
been completed by that date. In our view, the contention
is devoid of any merit. The Government was well within
its right in discontinuing the applicability of CCS
(Pension) Rules, 1972 and applying a new pension
scheme to those who were to join the service after

W.P.(C) 5828/2016 Page 14 of 18

promulgation of the new pension scheme. It was for the
Government to decide, in its wisdom, as to whether it
wanted to apply the new pension scheme to those who
had entered service on or after 01.01.2004 or to those
who were offered appointment on or after 01.01.2004.
The Government having decided to discontinue the
applicability of CCS (Pension) Rules and to extend the
new pension scheme to all those who were to join service
on or after 01.01.2004, irrespective of the date on which
offer of appointment was made to them, the petitioners do
not have any legal right to claim applicability of
CCS(Pension) Rules, 1972 to them. It is not as if the new
pension scheme has been introduced after the petitioners
had joined service of the Government. The petitioners
were not in the service of the Government prior to
01.01.2004 and, therefore, they had no right to the posts
of LDC in District Sessions Court, when the new scheme
was promulgated by the Government. Thus, this is not a
case of service condition of the employees being varied
by the Government to their detriment. Even if the
petitioners could not join the service on or before
31.12.03 on account of no fault on their part that would
make no difference since the relevant date is the date of
joining the service and not the date on which the
employment was offered to them. If we accept the
contention that the offer of appointment having been
made to the petitioners prior to 01.01.2004, they are
entitled to be governed by CCS (Pension) Rules, that
would be contrary to the terms of the scheme framed by
the Government. We must take note of the fact that there
has necessarily to be some timelag between the making of
offer for appointment and the selected candidate joining
the service of the Government because medical
examination and police verification must necessarily
precede the joining of service by him. If the medical
examination of some persons who are offered
employment along with the petitioners was conducted
and/or their police verification was done before the

W.P.(C) 5828/2016 Page 15 of 18

medical examination and/or police verification of the
petitioners and consequently, those persons were able to
join service on or before 31.12.2003 no benefit on that
account accrues to the petitioners since completion of
medical examination and police verification depends
upon a lot of factors including the place where the
candidate is residing, the hospital in which he is to be
medically examined, the date fixed by that hospital for
medical examination, the time taken by the concerned
police official in verification of the antecedents etc. If a
person is offered employment say in last week of
December, 2003, he cannot claim benefit of CCS
(Pension) Rules because some time is necessarily
required for his medical examination and police
verification and, therefore, it will not be possible for him
to join the service of the Government on or before
31.12.2003.

xxxxxxxxxxxxx

5. However, in the case before us, there was no order
passed by any Court restraining the respondents from
making appointments to the post of LDC in District &
Sessions Court. They were in a position to join service
soon after their medical examination and police
verification was complete. On the other hand, in the case
of
Dr. Pawan Kumar N. Mali
(supra), relief was granted
to the petitioners, primarily applying the principle that
the order of the Court cannot prejudice anyone. Had
there been no stay order
in that case
, the respondents
in
that case
would have joined service prior to 01.01.2004,
since not only the offer of appointment had been made to
them, even their medical examination had been
conducted well before the cut-off date of 01.01.2004.
They were prevented from joining service, only because
of stay order granted by the Court. On the other hand,
none of the petitioners before this Court could have been
allowed to join service prior to 01.01.2004 since the

W.P.(C) 5828/2016 Page 16 of 18

character verification in respect of all the three
petitioners was received after 31.12.2003.
This judgment,
therefore, cannot be applied to the case before us.

6. This is not the case of the petitioners that their
inability to join on or before 31.12.2003 was attributable
to any negligence or lapse on the part of the respondents.
If inability of the petitioners to join service on or before
31.12.2003 is not attributable to the respondents or to
any order passed by a Court and was only on account of
the time taken by the Hospital/Police in conducting
medical examination and police verification, the
petitioners cannot claim parity with the petitioners in the
case of
Dr. Pawan Kumar N.Mali
(supra). For the
reasons given in the preceding paragraphs, we find no
merit in the writ petition and the same is hereby
dismissed."

22. The Division Bench of this court in
Shailender Kumar and Ors

(supra) distinguished the decision in W.P. (C) No.5983/2010 titled

Government of NCT of Delhi & Anr. vs. Dr. Pawan Kumar N. Mali &
Ors.
dated 3.2.2011.

Notably, in
Dr. Pawan Kumar N. Mali
(supra) case,
the doctors in question were selected by UPSC in October, 2002 and 3 out of
13 selected officers had joined on 20.1.2003. The remaining 10 doctors had
undergone the medical examination, but they could not be given placement
on account of the interim order passed in the writ petition filed by the
doctors who were appointed on contractual basis seeking their
regularization. It was held that the status quo order in respect of the doctors
on contractual basis which was subsequently vacated and the writ petition
was dismissed, would not prejudice the respondents. This case carves, and
relates to, an exception to the general rule.

W.P.(C) 5828/2016 Page 17 of 18

23. In the present case, the delay in issue of appointment letters was not
malafide or intentional. The results were declared and thereafter the dossiers
of selected candidates were sent by the DSSSB on 06.12.2003. The files had
to be processed and by the time the appointment letters were issued, the
New Pension Scheme enforceable with effect from 1.1.2004 had become
applicable. Thus, the decision of the Division Bench in the case of

Shailendra Kumar
(supra) would be squarely applicable.

24. In the light of the aforesaid discussion, we do not find any merit in the
present writ petition and the same is dismissed affirming and upholding the
order passed by the Tribunal. There would be no order as to costs.

SUNITA GUPTA, J.

SANJIV KHANNA, J.

DECEMBER 01, 2016
'AA'

W.P.(C) 5828/2016 Page 18 of 18